At the International Cannabis Business Conference (ICBC) in Berlin which took place in mid-April in Berlin, the focus was on medical cannabis and above all on CBD products. While in the case of medical cannabis it became clear that market access was still severely restricted by real obstacles such as a lack of awareness among patients and doctors of alternative therapies and the bottleneck in the dispensing process, the pharmacies, the legal uncertainty with regard to the admissibility of their CBD products on the German market was high among many companies present. Especially when used for consumer purposes, speakers were unable to provide clear guidelines. This is reason enough to take a closer look at the legal situation.
So far, two leading appellate decisions have been enacted by the Higher Regional Court of Zweibrücken on 25 May 2010 and the Higher Regional Court of Hamm on 21 June 2016. Both cases concerned a head shop trader who had sold non-processed industrial hemp to end customers originating from a certified and officially approved cultivation and which contained less than 0.2 % THC. The operators were indicted by the public prosecutor’s office for illicit drug trafficking in accordance with §§ 29 Paragraph 1 no. 1 BtMG [Control Substances Act], but were then acquitted by the relevant criminal courts. The acquittals were then reversed and referred back to the public prosecutor’s offices for retrial. The Higher Regional Court of Zweibrücken, which was joined by the later judgment from Hamm, essentially stated the following to justify the culpability of the trade with commercial hemp: The distribution of the hemp mixture for fumigating [smoking] purposes was a trade in narcotics subject to authorisation. According to § 1 paragraph 1 BtMG, the narcotic property of a substance is based solely on its inclusion in the positive list of Annexes 1-3, without the need for additional specific intoxication quality or consumer property. There was also no exception in accordance with annex 1 to the BtMG keyword cannabis, in particular not according to literary b). After which plants and parts of plants belonging to the species cannabis are excluded from the BtMG if they are grown in countries of the European Union with certified seeding material or if their THC content does not exceed 0.2 % and, the decisive point, the marketing with them is exclusively for commercial or scientific purposes which rule out misuse for intoxicating purposes. These purposes must be available not only to the seller, but above all to the end user. These purposes must exist not only for the seller, but above all for the end user. This regulation is intended to open up the market potential of the natural resource hemp for industrial and possibly energetic use, but not to supply the population with THC-weak preparations for personal consumption purposes and also not to water down the basic cannabis ban of the BtMG. The court refers to the comments on Körner in its commentary on the narcotics law in particular, as well as to the legal substance when introducing the whitelist. Since commercial purposes can never exist when selling to the end customer, the further question of whether these exclude misuse for intoxication purposes is no longer relevant.
The further decision of the Higher Regional Court of Hamm, revoking an acquittal of the Regional Court of Paderborn, has also adopted this legal view. Commercial purposes within the meaning of the aforementioned regulation shall be given in particular if the hemp is to be processed further until a harmless product, such as paper, ropes, cosmetics, insulating materials or textiles has been produced. In contrast to this, mere consumption would not be a commercial purpose in the abovementioned sense.
Only if by processing a harmless cannabis product has been created, which cannot (no longer) be used for intoxication purposes, the sale to an end user would be permissible.
As a result, this interpretation of the law means that the legislator wanted to make low-THC cannabis varieties available as natural resources for the industry, but did not want to make useful hemp usable for foods or luxury foods [stimulants] (Körner, annotation on BtMG, 8. ed. 2016, marginal no. 16).
With this especially CBD blooms would probably not be deemed as tradeable [fit for marketing.
However the same should also apply to CBD oils or other CBD food supplements, since these are plant parts belonging to the cannabis plant species and are therefore narcotics according to annex 1 of BtMG.
The Ministry of Agriculture of North Rhine-Westphalia, the Federal Ministry of Health and the BfArM however interpret literary b) of annex 1 to the BtMG (as can be looked up on the website of the company Hanf-Zeit) in such way that only processed or unprocessed plants and plant parts of industrial hemp being delivered after harvest for industrial processing are regulated but not the processed plant components in end products. An extension of the norm on produce made from this is not deemed necessary. The Federal Ministry of Health also sees no further need for legislative action as the interpretations of the Federal Government and the Federal States are likely to be relevant in criminal court proceedings.
Processed oils or other CBD food supplements as well as CBD cosmetics can therefore be considered marketable as they are subject to the food law regulations only. Nevertheless a legal grey area remains since criminal proceedings are not excluded with regard to these products either because Judiciary and Executive still make different legal classifications.
In conclusion the guidance level recommendation of the Federal Institute for Risk Assessment for THC in hemp-containing foods should be referred to here.
Whether or not the jurisdiction respectively the interpretation of the law with regard to CBD blooms will change in the foreseeable future, which by all means would be legally justifiable, is doubtful. A final decision could at best be reached by the Federal Court of Justice on the understanding that it would have to decide on a respective non minor quantity in criminal proceedings. It is however not advisable for any entrepreneur to take this criminal risk to clarify this legal issue. Only the legislator can bring clarification in the matter.
Kai-Friedrich Niermann, Rechtsanwalt